Three of the nation's leading scholars on constitutional law and executive power — Michael McConnell, Sai Prakash, and John Yoo — join us to discuss the true extent of executive power, and their new books on the subject.
The most recent book, The President Who Would Not Be King: Executive Power under the Constitution by Prof. McConnell, was reviewed in the pages of the Federalist Society Review by John Yoo. Before that, Profs. Prakash and Yoo joined the Federalist Society's Teleforum to debate the Constitution's grant of presidential power and whether (or to what extent) President Trump upheld that grant. The discussion continues with the new voice of former federal judge and distinguished originalist scholar Michael McConnell.
- Prof. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Director of the Constitutional Law Center, Stanford Law School; Senior Fellow, Hoover Institution
- Prof. Saikrishna B. Prakash, James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law
- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, UC Berkeley School of Law; Visiting Fellow, Hoover Institution
- Moderator: Dean A. Reuter, Senior Vice President, General Counsel and Director of Practice Groups, The Federalist Society
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Dean Reuter: Hello and welcome to The Federalist Society special, “Talks with Authors: What Are the Extent and Limits of Executive Power?” I’m Dean Reuter, Senior Vice President, General Counsel and Director of Practice Groups at The Federalist Society. I’m very pleased to welcome three guests. I think all of them are return a guest of Federalist Society events, of course, and three authors.
And we’re joined first by Professor Michael McConnell. He has a new book out, titled The President Who Would Not Be King: Executive Power under the Constitution, just out recently. We also have joining us Professor John Yoo. He’s the author of Defender in Chief: Donald Trump's Fight for Presidential Power? And Professor Sai Prakash. His book titled The Living Presidency. I have them all. I’ve looked at them all. I haven’t read them all, but I recommend them all.
We’re going to get opening remarks from each of our authors. In probably five to eight minutes, we’re going to highlight Professor McConnell’s book, in particular, and then we’ll get reactions from Professor Prakash and Professor Yoo.
Very pleased to have all of you with us today. A note for the audience, this is being recorded and will likely be posted on our website as a podcast, of one sort or another, maybe even transcribed, and as always, the comments remain those of the author, the experts, and not The Federalist Society. But with that, Professor McConnell, what did you have in mind when you were putting pen to paper and tell us about your book, the thesis, and its various claims.
Prof. Michael W. McConnell: Well, thanks very much, Dean, and thanks for having me, and my, what could be better than a recommendation for the book by somebody who admits that he hasn’t read it? I trust the audience will take that recommendation for even more than it’s worth, right?
So I’m particularly pleased to be here with John and Sai. I think this is going to be a fun conversation for the following’s combination of reasons. One is that I think the three of us, by and large, share similar, if not identical, interpretative methods, and we’re all serious about the way in which text in history bares upon modern questions of constitutional law, but that we, I think, come at the presidency from somewhat different directions of the – correct me if I’m wrong, Sai and John, but I think of the three of us, I’m probably the most whiggish of the three, which is to say that I am not a fan of an overbearingly powerful executive, and I think that Congress was intended to be the primary organ of policy making in our republic.
I don’t go as far as many scholars do when the presidency is in the hands of the opposite party, but nonetheless – and I think if I can – maybe, I shouldn't characterize the other two, but I think that Sai and John both believe that the presidency, at the beginning, as it was understood, was more powerful than that. But Sai comes a little closer to me in thinking that the modern presidency has really gone off the rails.
But I guess my only real modern comment is going to be that what really matters is that we understand the presidency as inconsistent ways, regardless of what party holds office, regardless of whether we like the president or dislike the president. And Dean, you asked me about why I wrote this book, but I started writing this book back, what, about five years ago when I, along with almost everybody else, assumed that Hillary Clinton was going to be elected president.
And we had just come off of eight years of a pretty aggressive presidency, in which the Executive Branch was aggrandizing. Remember President Obama, his pin in the phone, so he had gotten frustrated with the fact that Congress and the United States often disagreed with him and therefore was increasingly charging off in a unilateralist direction.
Of course, with his cheering squad, and the media, and the academia, and most of the other pentacles of cultural authority, and it seemed to me that as I was writing this book, I was expecting that Hillary Clinton would just be a somewhat less effective and less charming version of more of the same.
And then when the surprising Donald Trump becomes president, I find that many of what I had to say about the presidency continued to hold water, and now that the tide has turned again, and already we see the Biden administration taking liberties with its statutory authority. And what really amazes me—maybe, that’s not true; it just confirms my cynicism—is that most of the folks who thought it was a terrible thing for President Trump to use the powers of the office as creatively as he sometimes did, tend to be much more enthusiastic about it now.
Just a few words about the construct of the book, which is that I have put together an explanation for how Article II was put together, and I think it has important bearings on current interpretation, but most of the book is not about current law, almost very fair only a few illustrative examples at the end. I think Article II is very difficult to understand, and that you really have to peel back some of the mysteries of the constitutional convention in order to understand how it was put together.
Part of this is because the principle authors of Article Two and of the presidency, therefore, were actually committees that met behind the scenes, where we do not have the direct records, that relatively little of the important work was done by the convention in open debate. When the Virginia Plan was presented to the convention, it had an extraordinarily powerful executive with the prerogative powers of the royal monarch, causing Charles Pinckney to sputter and say, “Oh, no, this will create a king. This will just make us an elective monarchy.” And the convention seemed to agree with him, and he was particularly worried about the unilateral power of the executive and what he called peace and war, what we call foreign affairs in military affairs.
But there were a couple of speeches by important framers, James Wilson, John Rutledge, in particular, in which they had a somewhat more – obviously had a more nuanced understanding of both royal prerogative and what they wanted to see from the new president. Well, the convention voted to create a unitary executive but with very little power, and that’s the way it sat for a month and a half until the committee of detail—the most misnamed entity in the entire framing period.
The committee of detail is actually responsible for most of the details of – most of the structure of our federalism as well as our Executive Branch, and it chaired by none other than Rutledge, with James Wilson right there, and they completely scrapped what had been done at the beginning and created a presidency with limited but nonetheless much more significant power.
My theory – and then I’m going to subside. But my theory is that they used our Blackstone’s account of the royal prerogatives of the king, but instead of giving them all to the Executive, as the Virginia Plan appeared to do, they divvied them up between Congress and the president, giving quite a few very important powers to Congress.
The power to declare war is one that John and I knew exactly what that meant. We may disagree, but it was a royal prerogative of considerable importance that was not given to the president. And, in fact, by one count, about 13 of the 27 enumerated powers of Congress were, in fact, royal prerogative powers, that is the executive powers under the British Constitution.
Others of the royal prerogatives were denied to the new federal government altogether, for example: the control over the national church, and the power to create titles of nobility, and so forth. And then finally, a number of the powers were given to the executive [inaudible 00:11:09].
And then in the end, they also created a catchall category with the first sentence of Article II. So they allocated implicitly—or either implicitly or explicitly—all but one, as I count them, of Blackstone’s prerogative powers of the king. They allocate them all with leaving one out. The removal power is not, I think, explicitly allocated.
And then they feel safe in giving the residue of the executive power to the presidency, but those powers being subordinate to the enumerated powers of Congress, where they might come in to clash, and that, to my mind, then creates the structure of the executive – which I think I’ve used up more than my fair share of time, so I’m just going to say that it bears almost no resemblance to the – or as controversy that everyone learns in the first year of law school, coming from Justice Jackson’s concurring opinion in Youngstown Sheet & Tube, the steel seizure case.
So I think that the Supreme Court has begun – it basically has created a framework that bears no resemblance to the actual Constitution and has ignored the structure that the framers had envisioned. So thank you.
Dean Reuter: Thank you. Professor Prakash.
Prof. Saikrishna B. Prakash: Well, it’s great to be here with Professor McConnell and Professor Yoo, and thanks, Dean and The Federalist Society, for having us today. And I agree with so much of what Professor McConnell just said. His book is wonderful. On the question of the topic for the panel, what is the extent of executive power? And, of course, that phrase can mean different things over a different time. It meant different things in different times in England and then Great Britain in the United Kingdom.
But in the 18th century, I think the executive power was principally about law execution. That’s the action that gives the executive power its name, and so the Crown, and state governors, and colonial governors, and our president is principally a law enforcement officer. A lot of people talk about the attorney general being the chief law enforcement officer, but it’s actually the president. As Hamilton put it, the president is the constitutional executor of the laws—ex officio. He doesn’t need some statute to indicate his role in that regard.
And then as John and Michael have written, and as I’ve written as well, executive power also had a foreign affairs component, what Locke called a federative power, but at times also called it executive power by Montesquieu’s time. It’s clearly understood to be an executive power—the executive power over foreign affairs. It’s understood as an executive power prior to the Constitution under the articles of confederation.
Continental Congress was primarily an executive and not a legislative body. Most of its powers were related to foreign affairs and supervision of bureaucracy, and those were executive powers, and lots of people called the Continental Congress an executive. It sounds strange to our ears, but there’s nothing about a congress that necessarily makes it legislative. It’s just a meeting of people. It’s the powers that give the sense that it’s a legislative body today, not the name.
And then a third aspect is the control of the military, which is, of course, related to foreign affairs, but not entirely covered by it, right, because it covers domestic affairs, use of the military in law execution, use of the military to suppress rebellions. And then finally, the last understanding of executive powers, related to the first three, its control of the bureaucracy, its appointment and removal, its direction of the bureaucracy.
And I think as Michael discusses, and John knows, and I’ve discussed elsewhere in a book called Imperial from the Beginning, these four senses of the executive power are amply reflected in early history, but they’re also amply reflected in prehistory, right? If you look at the state Constitutions, they all have grants of executive power, or many of them, most of them, have grants of executive power, and they’re clearly not a reference to the particular powers vested in the governor or the plural executive.
How do we know that? Because sometimes these state Constitutions only mention one or two powers that are going to go to the Executive, and then actually have a catchall, which says, “And they have other executive powers.” Well, that’s the sort of structure of Article II, except the other executive power stuff is in the Vesting Clause, right? It says the executive power shall be vested in the president. And then I’ll list a bunch of other powers that are in a sense constraints on the otherwise more fulsome grant of executive power.
So the president can’t make treaties without the sense consent. The president can’t appoint without sense consent. I think the natural reading of the Vesting Clause is, there’s an executive power not limited by the rest of the Constitution, either in Article II or in Article I. It rests with the president alone, right? That was the position that Hamilton and Madison took with respect to removal.
But where it is limited by the rest of the Constitution, either the president can’t exercise it or has to exercise it as specified in the Constitution, the president cannot regulate foreign commerce because that is given to Congress, and it’s understood that the president no longer has it by virtue of the Vesting Clause.
The president cannot declare war. Whatever that is, we all agree that the president can’t do it. We disagree as to what it means to declare war, but we all understand that whatever it is, the president can’t do it. And then I mentioned earlier treaties, right, and how the president can’t make them without the sense consent.
I’ll end by agreeing with Michael that modern presidency has slipped the bonds of the Constitution with respect to a couple of things. Presidents are now lawmakers. They were just a part of the process, in Article I, Section 7, but now they are lawmakers in the full sense because Congress has delegated authority. But also, as Michael mentioned, presidents adopt increasingly aggressive readings of statutes that aren’t tethered to the statutory text to advance their policy goals. And in so doing, they’re basically creating law out of the thin air, right, presto-chango.
With respect to foreign affairs, there’s all kinds of changes, but the most significant one is that presidents no longer feel like they have to submit treaties to the Senate for a two-thirds vote. They use something called the congressional-executive agreement. They just get Congress to pass a bill, and they use the bill as a basis for ratifying an international treaty. That’s NAFTA, right? There are many trade agreements that are done that way. That would've in the past, had they gone through the – had to go through the Senate. That’s an evasion of the two-thirds requirement. Maybe, it’s a good evasion, but it is an evasion of that requirement.
And then finally—John and I disagree about this—but the Founders, I believe, to a person, thought that the president could not wage war because to wage war was to declare it, and as John, Michael, and the listeners know, presidents today, of course, do wage war on their own authority. The most recent large-scale example of this was Libya, where President Obama took us to war for months in Libya without congressional authorization. I will end there, and I look forward to the conversation. Thank you.
Dean Reuter: Professor Yoo.
Prof. John C. Yoo: Well, thanks, Dean, for calling us together and thanks to Mike and Sai for their books. And so I was trying to figure out what to say to disagree with my two friends and colleagues. I thought maybe what I’d do is, very briefly maybe place this book in the setting of where we are with scholarship these days.
So we’re coming up on the – believe it or not, this is going to make us all feel old. We’re coming up on the 40th anniversary of the founding of The Federalist Society next year. Now, can you believe, that’s four decades of The Federalist Society. And so when you go back and look at the early conventions, and the topics, and the speakers, even from 1982, one of the most interesting topics to people in The Federalist Society was the exact question we’re talking about here.
How far did the president’s powers go? And so I hope that at the end of those four decades, these three books are not the end point of The Federalist Society’s interest in examination, or maybe, this is the Summa Theologica; this is the finest expression of all that has come before, and why would anyone need to improve on it after this? But you see in these three books, or I think the summation of all those four decades of thinking and wrestling with executive power.
And it also comes at a time as interesting, in the scholarship, because for those who aren’t reading the law review articles carefully, there is a resurgence of this idea from some scholars who think that the executive power in the Vesting Clause means basically nothing, that it’s ceremonial. And there’s been a number of high-profile law review articles published over the last two or three years that make the claim that all of the executive power is only the power to execute the laws, and that anything else is a modern invention.
And so one thing I think that’s interesting is that the three of us, looking at the same evidence, and we seem to share the same originalist methodology, come, I think, quite clearly to the view that this was not the original understanding of the Constitution, that the Founders did think there was something in the Vesting Clause, that it’s the structural version of the Ninth Amendment, that it brings in some kind of unenumerated powers that are not within the text.
And I would say this always has caused problems for originalists, for The Federalist Society, devotees because many of them don’t think there should be any part of the Constitution that has this living, breathing quality to it. You remember Judge Robert Bork, one of the heroes at the beginning of The Federalist Society, he famously said that the Ninth Amendment should be treated like an ink blot. He also wrote an article that did make the claim for, what I’d say, unenumerated powers within the Vesting Clause.
But for him—it was interesting—it was stridently non-originalist. For example, he wrote an interesting article about the president’s war power, and he made the claim for basically on practicality. Anyway. In the modern world, with nuclear weapons and intercontinental missiles, it was impossible to have leadership from a body of 535 people.
And so it’s interesting, many of the people there at the Founding, present at the creation, I think felt some kind of disjunction between their commitment to originalist methodology, but then there’s support of a vigorous presidency with the Reagan years, particularly—with the Reagan/Bush years.
And you could say all three of these books, I think, are an effort to come to grips with that because they all tried to studiously use originalist methodology to address these questions and not to make their claims based on modern practicalities, and still find some kind of area where the Executive has some freedom or there’s some powers that are not strictly defined in the text.
And, of course, that brings on how to think of the Biden administration, how to think about the Trump years. So the thing I think that’s different in my book than my two friends’ books is that I think I placed probably more emphasis on the political theory of the time, to try to define what executive power means.
I would say if there was a difference, I think Mike’s is an effort to look at how did the phrase evolve through the – almost like the legislative process of the constitutional convention. And I think his is the most careful – I think in my review, for The Federalist review, I said, “This will replace Thach’s book.” If you did work in this field, you would read Thach’s book, which was written in the ‘20s, about the constitutional convention and how the executive power changed.
And certainly, Mike’s book has difference from the other pieces of works. He really, almost day by day, goes through the constitutional convention in a more careful way than anybody had ever before.
I think where Sai and I differ is that Sai, I think – and I quite agree with the way he generally approaches this question, but I think that where we differ is that he places more emphasis when you try to understand original public meaning, what the words commonly meant at the time. So when we talk about declare war, Sai’s work has said, “What does declare war mean to people at the time?” And he looks at everything: letters, speeches, and so on.
And my difference is probably that I tend to think of the words in the Constitution more legalistically or as a matter of what they would've meant to political theorists at the time, so I might care a little bit more, for example, what Machiavelli thought the word executive meant than perhaps what—I don't know—what diplomats of the time might’ve thought, or when it comes to declare war, for example. I think that’s where Sai and I differ. And I think that’s where the three books, read together, give you these different – really more emphasis on what we all consider to be the most valid data or history to look at.
Now, just lastly, what does this mean for questions of today? One thing I think that’s interesting about President Biden is that it would seem, to me, the Founders thought the biggest scope for an unenumerated executive power would be in foreign affairs and national security. And you would've seen just recently that President Biden called for the repeal of the authorization to use military force.
Maybe, I’m wrong, but I can’t think of another president who has wanted before to narrow and limit his own powers in national security in this way. Maybe, except, I guess, President Carter would be an example, but even President Carter did things like the Iranian hostages operation, and President Carter did not actually acknowledge the constitutionality of the war powers resolution.
I think President Biden, it’d be interesting. I think he may well think the war powers resolution is constitutional, and it’ll be interesting to see whether he obeys it over the next four years. But the unusual thing is—I agree with what Mike said—you’re probably going to see President Biden expand his efforts to use executive power when it comes to domestic affairs. He’s using executive orders and interpretation of regulations just as vigorously as Trump did. It’s just the political polarity is in a different direction, but the claims of power, I think, are very similar.
But it’s a foreign affairs and national security, I think, where you could see this real difference, this effort to try to actually narrow and reverse what had not just been the practice of the Trump administration but many previous presidents back through 'til FDR, at the very least, in an area where you – I think we all agree that the Founders thought that the Constitution in the Vesting Clause acknowledges a broader presidential power than just what’s strictly set out in Article II. So thanks very much for bringing us together, Dean. I look forward to any comments or questions.
Dean Reuter: Great. The questions are piling up in the chat. Professor McConnell, I want to give you a chance to respond and augment before I ask a question or two or turn to the audience. But again, for the audience, the title of the book we’re talking most about today, by Professor McConnell, The President Who Would Not Be King. Professor McConnell.
Prof. Michael W. McConnell: I certainly don’t need any rebuttal time. I appreciate the thoughtful comments that John and Sai have made on the book. I wonder if we disagree on this—and let me just throw this to John—one of the most important foreign policy questions today is whether the Biden administration will be able to stitch together the Joint Plan of Action, what we usually call the Iranian nuclear agreement.
And the way I look at this is that Congress had passed a series of statutes imposing sanctions on Iran, giving the president two different kinds of waiver authority, a very broad waiver authority, but hinged on certain findings of Iran standing down with respect to international terrorism and aggression, where President Obama did not invoke that broad waiver authority. And I assume that’s because even they were not willing to make the preposterous claim that Iran had actually satisfied those preconditions.
And then Congress also gave the president, in each of the statutes, very narrow waiver authority. So for very specific waivers of sanctions for short periods of time. And the way I see this is that the president stitched together all these tiny waivers and made them into a big waiver, even though the Congress had not authorized a big waiver without certain findings.
Now, that leads me to conclude that the agreement was beyond presidential authority, but that might be because I don’t – I’m not sure. I’m curious whether John believes that the unenumerated foreign affairs power of the president is sufficient to permit him to enter into an agreement like that in the face of congressional statutes within the enumerated powers of Congress.
Prof. John C. Yoo: Yeah. That’s an interesting question. So the one thing, in addition to these sanctions statutes, I actually think might’ve been a mistake for the Congress, back at the time of the original JCPOA to have made, was, you might remember they passed actually a statute for the approval, or not, of the JCPOA, but they did it in this very strange way where they said they created a mechanism, a requirement, that there’d be a vote to disapprove the JCPOA. Not to approve it, to disapprove it. But then the Democrats filibustered a vote called for in the bill.
And so if you were to look at this from the Youngstown framework, you would have on the books – there’s a statute that says, “Congress shall have the right to vote against the JCPOA,” and then the vote fails. And so before you get to the sanctions statute, it seems, to me, if you think Youngstown is the proper framework—I’m not sure it is, but if you think it is—then that sounds like you’ve gotten into Youngstown category two, if not category one. And then there’s this broader statute specifically written about the JCPOA, which the president has survived.
The interesting thing is I think that – I was trying to look this up a few weeks ago, whether if President Biden reenters the JCPOA, he has to resubmit it to Congress, and it would go under this mandatory vote statute again. I think that’s an interesting question. That statute sort of has -- seems to me constitutionally more precedence than the individual sanctions bills. Some of them are just under IEPA and are general statute bills with presidential waivers that don’t even have to do with Iran specifically.
And then I think there’s just this separate interesting question, how far can the president go in an international agreement on his own with another country, just promising how to use essentially authorities under domestic law? It seems, to me, that if it’s not legally enforceable, then the main check is just the next president reversing it.
So I don’t know why it would be unconstitutional for a president to promise, say, the head of another country to say, “If you do this, then I promise I’m not going to invoke the sanctions power that Congress has given me but which I have discretion over.” But I confess, I think the Constitution is not clear on what the difference between a treaty that has to go to the Senate is and what’s a sole executive agreement that the president can make, given that presidents have made sole executive agreements from the beginning. I defer to Sai now.
Dean Reuter: Sai, do you want to weigh in here?
Prof. Saikrishna B. Prakash: This is a really confusing area because the JCPOA was not meant to be an executive agreement. It was meant to be a political commitment. And so the Constitution has this treaty clause, but it also mentions things called compacts, and as John mentioned, presidents have long made agreements with foreign nations, but not submitted to the Senate when they’re unimportant. And then there’s this third category of just commitments that aren’t agreements, and the JCPOA was expressly designed not to be an agreement and not to be a treaty.
And then to make it even more confusing, the act that John mentioned talks about submitting an agreement to the Senate, but the Obama administration consistently said, “This is not an agreement. This is a political commitment.” So technically, I don’t think they had to get the Senate’s approval or even had to go through that process.
So they papered a document that didn’t create any legal obligations, but everybody talked about it as if it were an agreement, right? It’s called the Iranian deal. It’s called the Iranian agreement. And when we left, people said we broke our word; we broke our promise. And so even the people who are deep in this field, the international lawyers, are confused about what the JCPOA is. Is it an agreement? Is it a binding agreement on the international level or is it just plans of action as the document seems to suggest? And I think it’s deeply confusing for anybody in the field, let alone people not in the field.
Prof. John C. Yoo: Just on one other point on Sai’s point is, I don’t think it should matter what international lawyers call it. Whatever the heading of the agreement is, it seems to me the Constitution requires us, under domestic constitutional law, to look at it and make a judgment about whether it’s a treaty that requires Senate consent, congressional executive agreement, sole exec. It seems to be calling something – a political commitment is an agreement, right? It’s just when it crosses from political to legal.
So to give an example, famously, at the end of the Cuban Missile Crisis, President Kennedy basically said to the Russians, the soviets, if you remove your missiles from Cuba – allegedly, there were two promises made. We will remove missiles from Turkey. Maybe, we should’ve kept them there to keep an eye on the Turks, now that I think about it, right?
We remove missiles from Turkey, and then there’s this secret promise that, allegedly, we promised never to conduct a ground invasion of Cuba, right? None of them are ever reduced to writing, apparently. They’re just made. To me, that’s not an agreement, right? That’s seem to me your political commitment that Sai’s talking about. It’s vague; it’s not legal.
I agree the JCPOA is a written document with all kinds of provisions and quid pro quos that we’ve always – Mike says the exercise of president’s domestic legal [inaudible 00:36:14]. That to me seems like something that we would call an agreement under constitutional law that might have to undergo some kind of approval or not, but it doesn’t seem to be just politics. Maybe, that’s how you draw the difference. I don't know.
Dean Reuter: Let me ask a question that might be somewhat related, and we’ve – at least, I’ve noticed a lot of discussion recently about norms and traditions. The three of you take an originalist approach. How much should we be considering the norms and traditions of the exercise of executive power versus the constraints for the powers granted in the Constitution? Is that important?
And here I’m thinking, in particular, we’ve heard this with regard to President – well, President Trump’s abandonment of norms and traditions, but then President Biden, his claims are that he would hew more closely to norms and traditions, but then we see criticism of him for firing the NLRB GC and the EEOC GC and ACUS folks. What do we do about norms and traditions? Are they important or not?
Prof. Michael W. McConnell: Well, I can say, for me, I do think that they are important, but they’re important to supplements to the Constitution. They help flesh out a political and constitutional practice within the boundaries set by the Constitution. And they are not – they’re called norms. They’re norms because they’re not legally binding, but I think that they should have great force and should be departed from only for very good reason. I’m less worried about this in the foreign policy arena where breaking of norms is practically a norm, going back 100s of years. Then, I’m more worried about this in terms of domestic practice.
For example, just to use a Trump example, I think that his interference with the – or attempted interference. I think most of it was just feckless attempts on his part, but his attempted interference with the process of criminal investigation and prosecution strikes me as a violation of a norm that was very important for the country. We didn’t like it when the IRS was politicized, and we shouldn't like it when the DOJ is politicized either.
Prof. John C. Yoo: I agree with that. I think that maybe I might be more forgiving to the presidency on where those bounds are. Because I think that in many of these areas, the Founders did not have a strict bright line in mind when they created the presidency or even used the phrase “executive power” because part of the idea of the executive power was supposed to respond primarily to unforeseen circumstances and events before the other branches. And so a periodic repetition of those can create the customer norm by itself.
But in the case of things – in Mike’s example of President Trump and his treatment of Bob Mueller in the special counsel, it seems, to me, constitutionally, Trump could've fired it. I don’t think any of us disagree with this. I think it would’ve been no breaking of the Constitution for President Trump to fire Mueller or to order Mueller exactly how to conduct his investigation. Because of this vision of the Executive Branch and Article II being governed, ultimately, in law and execution by the president, backed up by the removal power.
But I also agree with – and I think Sai and I wrote a piece about this in the paper, that this would've been a terrible, terrible idea, and that would have broken norms, going well before the ethics and government act to the special use of the special counsels and the Teapot Dome scandal and even before. But then the only solution it seems, to me, is to look at the tit-for-tat powers that the different branches can wage against each other.
So we also thought, I think—I still think so—that Congress could have impeached the president if it wanted to for firing Mueller or telling him “Don’t investigate me” if it wanted to because the impeachment clause is not just limited to crimes. It’s not just a legal standard. It also encompasses political acts.
Prof. Saikrishna B. Prakash: If I can just weigh in real quick. The president clearly has constitutional power to direct the Department of Justice. Early presidents directed U.S. attorneys and the attorney general all the time, telling them to prosecute people, telling them to stop prosecuting people, and doing so without issuing a pardon, just saying this prosecution needs to stop.
And so John’s written about this with respect to the Burr prosecution. Thomas Jefferson is intimately involved. It preceded that. George Washington issued directions. John Adams did as well. Having said all that, it’s probably not a good idea for presidents to get involved in every prosecutorial decision because they don’t have the expertise, and they don’t have the knowledge of that local – well, people on the ground do, so it’s a good norm to have.
Can I think of reasons why you’d want to intervene? Of course. If Bob Mueller is investigating the president four years later, I think it’s crazy. To be honest with you, I think the whole investigation for obstruction was misbegotten. I don’t think it should’ve ever begun. I think it’s silly to think that – and supervising the special prosecutors itself and act out obstruction because it influences the investigation.
And so, yeah, if Bob Mueller’s still investigating this four years later, I don’t think it’s entirely appropriate for a president to consider and possibly violate the norm of noninvolvement in the Department of Justice.
Prof. John C. Yoo: I don’t think it was a particularly bad idea. I know people proposing it these days is to make the FBI director or the attorney general protected from removal, except for cause. This has been kicked around since the Watergate days. And on the other side, well, you could say, “Well, politically, some presidents, like Clinton or Trump even, it’s in their political interest to have some independence and a prosecutor counsel.”
And this goes back to my point of maybe the differences between our three books, I think that would really undermine the whole idea of what an executive is. If the idea of an executive—Machiavelli’s point—is someone who can act at a stroke, who can act immediately with – the words that are in Hamilton’s contributions to The Federalist Papers.
The idea then that you would take the core of the executive power, which is law execution, and insulate it from presidential control, almost would – I personally, I would think it would defeat the point of the presidency or its animating force, just as if I think there’s a threat to the idea of the independent judiciary if Congress were just to say, “We’re going to take most of the cases and move them to Article I tribunals.”
Last point is that the parallel arguments we’re making about Article II could apply to the judiciary too, and I think it also suffers from the same potential vulnerabilities, once you cleave off parts of its duties and protect the people who are going to be in charge of it from presidential control or the Supreme Court’s control when it comes to adjudication.
Dean Reuter: I want to turn to audience questions, but I want to hear from Professor McConnell, whether you agree or disagree, in particular, with the criminal law aspects, supervision of criminal law, Professor.
Prof. Michael W. McConnell: Some of these norms and constraints actually empower the Executive. One of the most important things about our nation’s respect for the rule of law is that people have had confidence that the law is going to be executed in an impartial manner, where whether you’re a friend of the president or an enemy of the president doesn’t affect the way whether you’re going to be investigated or not. I think that’s part of being a free society.
And I think that when the president – and I don’t mean any one president. The presidency, presidents, over the decades have created mechanisms to insulate criminal prosecutions from political interference from the White House, that that has made our criminal justice system stronger, more trusted, more reliable. I think that when that is undermined, that it actually weakens the execution of the law rather than strengthening it.
Dean Reuter: Let’s turn now to the audience. I’m in the Q&A here. I don’t know if you guys can see these questions or not, but from David Forte (sp), how do you gauge the court’s recent interventions to limit presidential power? There seems to be an upward graft of presidential lawsuits, running from Clinton through Obama, through Trump and now Biden. Professor McConnell, you want to take a shot at that?
Prof. Michael W. McConnell: I see what David is saying, and I think that that’s empirically true, but I don’t really think that this reflects a change in the court so much as it is that presidents and recent administrations, both parties, have taken an increasingly imaginative approach to interpreting statutes. And the courts respond by saying “No, actually, the statute doesn’t mean that. You can’t do that.”
Most of the interesting separation powers questions, these days, are not presented as constitutional questions; although, I think the Constitution is right behind the question, but they are presented as a statutory question. So just a couple of days ago, a court held that the Executive Branch has not been given the power simply to cease leasing in entering into oil and gas leases.
Well, that’s the question. You want to look at the statute. What does the statute say? I thought it was quite hilarious; I read the New York Times article, and this was some interest, and it couldn’t figure out what the statute said. The New York Times seems to think that the very thing that matters is irrelevant; it’s all just push and shove.
Prof. John C. Yoo: Let me say, this is not the first time this experience has happened to you, Mike.
Prof. Michael W. McConnell: Well, I get it. I get some amusement out of it anyway. But I think that’s the problem.
Now, there is a feature in our Constitution that creates this tension between the courts and the president, and I don’t think our Founders intended this. But I think they created a structure in which this is inevitable, which is that at the end of an average eight-year presidency, which most presidencies been, eight years in our lifetimes, the president will have named about 40 percent of the lower federal courts.
That means that when the presidency changes party hands, that the judiciary, generally speaking, is more in the hands of the opposite party than it is the president’s own party, and I think that that leads to blowback.
And so Obama experienced this kind of blowback. Trump experienced it in spades because even the Republican Party wasn’t really completely behind him, and now Biden is experiencing much the same thing. And each party regards this as the judiciary stomping on their toes, but actually, I think this has been a feature both ways. I think we should view it as a feature rather than a bug.
Dean Reuter: Turning next to a question from [crosstalk 00:48:20].
Prof. John C. Yoo: Oh, can I just jump in with something. There’s something else. It makes me feel bad for presidents of both parties when this happens. Because I think if you put it in the context of the administrative state—I think we were talking about before—what’s the biggest difference between the modern presidency and the Founding? To me, it’s not really the presidency itself. I think what they would – if you showed them our world today, the thing that would surprise them the most about Article II would be the enormous welfare state that’s been created.
And it seems, to me, what’s been going on is that Congress has just given the Executive Branch so much responsibility for so many things, big and small. Presidents get elected to office and they become politically responsible for all of it. And so a lot of these exercises of presidential power, while they have a political consequence, I think constitutionally what presidents are doing is just trying to get control over this massive beast of an administrative state, which Congress, for its own reasons, loves to give to the Executive Branch, blame the president, but doesn’t really want the president to have that much control over it because that reduces Congress’s control.
And so it seems, to me, every time these losses occur—and I agree, Mike, they’ve been going on now for several – I think it started under Clinton, towards the end of the Clinton administration, but then under – it really started I think under George W. Bush. Every time that happens, I think it reduces the ability of the president to control this giant welfare state and makes more and more of it independent, makes more of it approach the kind of—I don't know—Teutonic administrative state that Woodrow Wilson really wanted.
I don’t think that’s – even though the court thinks that when it does this, it’s standing up for the separation of powers. I think actually every time it does this, it is actually harming the means of accountability that the original Constitution set up, even for a much bigger state that we have now than we did 220 years ago.
Prof. Michael W. McConnell: Let me agree with that in, at least, in a way. I think possibly the biggest difference between the way we do things today and the Founding era is in the administrative state, and it’s in the Administrative Procedure Act, in particular because at the beginning, the only mechanism courts had for reigning in executive action were the writs of mandamus and prohibition.
We all know about mandamus from Marbury v. Madison, but I think many people skip through the important parts of that opinion, which is actually about mandamus and to those question of judicial review of the statute, which I think was actually not as controversial at the time. But the writs of prohibition and mandamus were limited to clear legal violations and not to abuses of discretion.
So if the Executive was given discretion, over a matter, the courts had no say. Well, under the Administrative Procedure Act, you can challenge agency action for being arbitrary and capricious. Well, arbitrary and capricious is a type of review unknown to the Founders, and that means that much of the activity of the Executive Branch is now subject to judicial review in a way that the Founders would not have contemplated.
That isn’t necessary to say that it’s unconstitutional because the Administrative Procedure Act is what it is, and mandamus and prohibition, the definitions are not embedded in the Constitution, but it is a massive change in the way we do things.
Dean Reuter: Jeffrey Woods’ question: for those approaching interpretation from an historical textual perspective, the loadstar seemed to be the words themselves and how the drafting generation understood them, manifested in their apparent interpretation. Is there a tension between apparent broad grants of some powers, under Article II, and the narrow exercise of many of those powers by the earliest presidents, including Madison, in particular? Has SCOTUS created parts of this problem by expanding certain doctrine, example, the incorporation of certain provisions of the Bill of Rights against the states, through the Fourteenth Amendment due process clause?
Prof. John C. Yoo: I’m happy to dump on Madison for a little bit. Because I think if you were to say, “Okay, here’s a guy who, in the constitutional convention, initially was in favor of a very broad executive.” He did support some powers of the executive at the beginning, like the removal power, but famously, and after the break between Jefferson and Hamilton, Madison threw in on the Jefferson side.
In fact, many people – the scholars of Madison, they think that after Jefferson returns to America and becomes leader of the party, that Madison’s importance really falls off, that Madison had this period at the time of the Founding. As you may know, Madison took the opposite approach to the theory we’re laying out about the unenumerated powers of the president.
He just said, for example, the power of war and peace must be legislated. And he said all these arguments about some kind of powers in the Vesting Clause, they reek of monarchy, and in the Helvidius–Pacificus Debate, he reaches his rhetorical heights.
And look what happened when Madison became president and tried to put his lessons to the test. The War of 1812 was a terrible war. The United States is lucky we got out of it with basically a tie. The British came very close to splitting the country in half. Madison left the war up to congressional leadership. He lived up to what he said in the Helvidius–Pacificus Debate, and he basically let Congress set war strategy, and he let Congress really take management of the war into its own hands.
And we did disastrous things, first of all by declaring war on Britain rather than France. Declaring war against the only nation that had a land border with armed troops on it, and then Congress drove us into an invasion of Canada, which failed, and luckily President Jackson won at the Battle of New Orleans. I think this was a great example of someone who tries to conduct the Executive in the way that many critics of it want, and you can see the results in Madison himself.
So I’m glad the questioner mentioned Madison because I think he’s a good example of what not to do as president. I think he was one of the worst presidents we ever had.
Dean Reuter: Professor Prakash or Professor McConnell.
Prof. Saikrishna B. Prakash: I’ll just chime in. I think I disagree with the premise. Every early president assumed or read the Vesting Clause as giving them authority over foreign affairs, and they directed diplomats; they controlled negotiations; they controlled correspondence with foreign nations, none of which is specifically mentioned within the Constitution, all of which is derivable from the Vesting Clause.
They also supervised the bureaucracy in ways that are unfathomable today by directing all kinds of lower offices to do certain things and not do other things. And they all issued commissions that said that these people served under their pleasure, and they fired people, right? And so I don’t actually think that they had narrow conceptions of executive power—at least, just compared to some academic writers of today.
Now, did they all have the same theory of executive power? Maybe, not at all. Maybe, not over time. Madison actually believed in the Vesting Clause thesis, right? He believed it in the Congress. He even believed it as Helvidius. Because if you read it, he says, “I think that Congress was right with respect to removal.” I just think that doesn’t include foreign affairs powers.
That’s something that where he changed his opinion over time. Because prior to writing Helvidius, he had said that it did include foreign affairs powers. So I just disagree with the premise of the question. Each of these presidents believed in the Vesting Clause thesis. Their actions proved as much.
Dean Reuter: Professor McConnell.
Prof. Michael W. McConnell: I was going to take issue with the framing of the question too, but from a quite different point of view. The question presupposes that we look at the text in light of the words and how those words were understood. And, of course, there’s a certain orthodoxy in that.
But I think more important than the words, and the dictionaries, and the word definitions is the history behind the various provisions because there’s not a provision of the Constitution, certainly not a provision of Article II, that did not arise out of a particular history, often an unhappy history. Sometimes a happy history, but often an unhappy history with the British Crown. And I think the most important thing is to understand where the provisions come from rather than just to try to parse it as if it’s a linguistic exercise.
Prof. John C. Yoo: Can I make one serious point after going off on Madison, which was not a serious point, but fun? The serious point is – and this is some way we all differ in terms of originalism is, I’m probably a little more skeptical of using any of the evidence post-ratification. Sometimes, it’s actually used by people to criticize originalism, right? They’ll say, “Well, if they don’t agree – if the removal power is actually upheld in Congress by the slimmest of margins, and they’re all of the Founding generation, and they don’t agree on it themselves, or they don’t agree on whether the president can issue a policy of neutrality in 1793, then how can we, 230 years later, make any clear judgments about the original understanding.
I don’t treat this agreement after the Founding that way. I think it’s just that when it comes to the executive power, it was left somewhat open-ended, so it’s not surprising they’re arguing over it immediately after because they’re already gripped with the more immediate day-to-day political costs and benefits of a certain position, and so they’re not in the status they were before, making a constitution and being maybe more neutral and objective about it.
But I also don’t think that the practices immediately after ratification should maybe count as much. Except, as Mike put it, as you’re trying to understand what the words meant because they were part of a historical practice of, say, what the Executive was, then maybe if you see some evidence afterwards that reinforces what was already understood before.
But it seems, to me, after ratification, that’s the politically important event of adoption of the Constitution, and so it seems, to me, you couldn’t have post-legislative enactment legislative history with a statute. It seems, to me, constitutionally, you shouldn't really be able to have post-ratification evidence of the Constitution count as part of the original understanding too.
Dean Reuter: Well, we’re out of time, but I know none of you have a real hard stop. I want to give you each a chance to wrap up. Let’s go in reverse order than we started, so we’ll start with Professor Yoo. And as you do that, I’m curious if you have any thoughts about what your theory of executive power says about reversals of positions by a president and does it matter if the president’s reversing himself, if Trump reverses his own position in policy or litigation even, or if a subsequent political opponent reverses a previous president’s decision-making?
Prof. John C. Yoo: I’m glad you raised that. That’s something I’ve been promising to write an article about, this question about the president’s power to reverse. And it’s actually a good example of the second-to-previous question about – actually several of the questions about judicial expansion of its role, of how do we take the differences between now and then?
I would have thought, given what the political theory of the day said about the executive power, one of the biggest checks on the presidency is the ability to reverse the acts of past presidents. I think that’s more of an important check nowadays when you talk about all the responsibilities the Executive Branch has is the ability to reverse the past president.
What I think is odd is that there are these growing and growing efforts—some by the Supreme Court—to prevent presidents from having that flexibility and discretion, to require presidential powers to be locked in. And so I’ve thought the Supreme Court’s opinion in the DACA case was extremely puzzling to me that you could make a decision – that President Obama could make a decision which was basically an executive order. It was a memorandum on how to use prosecutorial discretion, and then the court said that President Trump couldn't just reverse that in the exact same method used to create it.
That, to me, is one of the most important checks on the presidency and is really part of the nature of the executive—the ability to axe immediately and suddenly with speed. The qualities that Hamilton said are truly executive, so it’s maybe it’s just part of domesticating the presidency in this web and network of procedures and reviews and tying down Gulliver, as it were, but I do think that undermines the very purpose of having an executive branch.
Dean Reuter: Professor Prakash.
Prof. Saikrishna B. Prakash: I’ll quickly say that I completely agree with Michael’s earliest comments about how people’s views about presidential power often shift every four or eight years. And I’m proud to say that I think the three people on this panel don’t have that view. We don’t have the view that presidential power has shrunk now that Biden is president.
And it’s unfortunate because what it means, it’s just impossible to have a sense of what the presidency’s powers are, as your view on that question. That fundamental question shifts depending upon who’s in office, and it’s just lamentable that it just happens. And it happens like clockwork, right, depending on who wins or who losses. I’ll leave it at that.
Dean Reuter: Professor McConnell, a final thought.
Prof. Michael W. McConnell: Well, I agree with John that presidents have the authority to reverse their predecessors, and if the matter is within presidential discretion, that discretion can be exercised in different ways by different presidents. The way you put the question, Dean, made me think you were thinking partly about positions in court, and there I do have a slightly different sense because I don’t actually believe that statutory and legal interpretation by the executive should be understood to be a matter of discretion.
Of course, different presidents and different administrations sometimes take a different view. But it strains the theory of what legal interpretation is if they can simply flip on what statutes mean, according to what they want them to mean. And in that sense, I think it’s been very good that the Biden administration has stuck with some Trump administration positions over vociferous political objection within the Democratic Party. And I think that’s a sign that there’s a certain integrity in the legal system.
Dean Reuter: Very good. It sounds like we could explore that further in a future call perhaps, but my thanks today to Professor McConnell, author of The President Who Would Not Be King; Professor Prakash, author of The Living Presidency; Professor Yoo, author of Defender in Chief, all available at Amazon and bookstores everywhere if you have a bookstore near you.
I guess you can go back to bookstores nowadays. But I certainly appreciate your time and your expertise. Thanks to the audience as well for dialing in and for your questions. Until our next event, we are adjourned. Thank you very much, everyone.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.